SALT LAKE CITY — Sen. Mike Lee says the legal battle over a Colorado baker refusing to create a wedding cake for a same-sex couple isn't a public accommodations case.
"This isn’t a case in which someone refused to sell a pre-made good to someone else based on their sexuality or orientation," the Utah Republican said Thursday at a news conference in Washington, D.C., supporting Masterpiece Cakeshop owner Jack Phillips.
Calling it a "compelled speech" case, Lee said the couple asked Phillips to use his talents to make a specialty cake to carry a message with which he disagrees.
"The government cannot force you to speak where you choose to remain silent. It cannot make you make a statement with which you firmly, fundamentally disagree," the senator said.
Also Thursday, Lee condemned what some have seen as hostility toward people of faith who have gone before the Senate during recent confirmation hearings
"Our country’s ban on religious tests is a strong bulwark for religious freedom. As an original provision of the Constitution, it predates even the Bill of Rights, and it applies not just to some religious adherents, but to all of them, equally," he said in a speech on the Senate floor.
"At a minimum, this body can do its part by respecting the constitutional rights of citizens who come before it. Lest we forget, we work for them, not the other way around," he said.
At the news conference, Lee joined other GOP members of Congress supporting Phillips, whose case is pending before the U.S. Supreme Court. Lee is among 86 Republican lawmakers who signed on to a friend-of-the-court brief on Phillips' behalf.
The case involves more than a clash between nondiscrimination claims and free speech rights, the brief says.
"The more fundamental question is the power of a government to compel Americans to frame or speak messages against their conscience. For if the government can compel a religious person to make artistic designs for events that conflict with their religious beliefs, there is little speech the government cannot compel," according to the brief.
Lee said the Colorado law at issue allows bakers to decline a custom order if the proposed design violates a "tastefulness" policy that applies to all orders.
"But this exception, according to Colorado, apparently doesn’t extend to tastefulness based on one’s religious beliefs," he said.
Phillips refused to create a cake for the wedding reception of a gay couple who were planning to marry in Massachusetts. The couple, Charlie Craig and David Mullins, pursued discrimination charges and won before a civil rights commission and in the courts. Phillips appealed, and the Supreme Court agreed in June to hear the case.
"All Americans regardless of their orientation, regardless of their religious beliefs ought to be concerned about any law that purports to give the government the power to tell you something that you must say, even if it violates your most fundamental beliefs as an individual," Lee said.
The Department of Justice also filed a brief Thursday siding with Phillips. The government agreed that his cakes are a form of expression, and he can't be compelled to use his talents for something in which he does not believe.12 comments on this story
The American Civil Liberties Union objected to the government's position, saying the brief argues that businesses open to the public have the right to discriminate against LGBT people.
"This Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear. But this brief was shocking, even for this administration. What the Trump administration is advocating for is nothing short of a constitutional right to discriminate," Louise Melling, ACLU deputy legal director, said in a statement.
Melling said the ACLU is confident that the Supreme Court will rule on the side of equal rights as the lower courts have.